Proper but not Peculiar: Coordinate Constitutional Construction as Precondition to Checking the Judiciary

Abstract

In The Federalist, Publius makes five defective assumptions about judicial power, which underestimate and invite the danger of judicial supremacy. Contemporary judicial practice conforms to Publius’s assumption that the judicial branch holds final authority in interpreting the Constitution, but contradicts his expectation that this would not lead to judicial supremacy in the political regime. This article excavates and critiques Publius’s assumptions about judicial power from a close reading of The Federalist. It argues that any successful check on the judiciary requires adoption of the theory of coordinate construction. It concludes with an exploration of the institutional and normative implications of coordinate construction.